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2019 DIGILAW 802 (RAJ)

Govindi Devi v. Onkar

2019-03-11

VEERENDR SINGH SIRADHANA

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JUDGMENT Veerendr Singh Siradhana, J. - By the impugned order dated 1st February, 2019, an application instituted by the petitioner under section 213 and 276 of the Indian Succession Act, 1925 read with section 49 and 151 CPC with a prayer to dispense with the advance payment of court fee in the probate proceedings instituted by the petitioner; has been declined, of which, the petitioner is aggrieved of. 2. Learned counsel for the petitioner, referring to Section 52 of the Rajasthan Court Fees & Suits Valuation Act, 1961 (for short, ;the Act of 1961'), asserted that it is within the discretion of the Court to grant probate or letters of administration notwithstanding that the prescribed fee has not been paid, to the Administrator-General in his official capacity, on his giving an undertaking to the satisfaction of the court that the said fee will be paid within such time as may be fixed by the Court. 3. It is further asserted that in the case of the petitioner, in the face of Schedule I, Entry 6 and Schedule II, Entry 11(j), the fee is leviable on grant of probate and not with the application for probate. Hence, the Court below ought to have granted the application of the petitioner. Reliance has been placed to reinforce the stand on the opinion in the cause of Vasudeo vs. Lal Singh & Ors.: AIR 1992 Rajasthan 133 . Learned counsel has also relied upon the opinion in the case of Pishorilal Sethi vs. Arvind K. Jauhar: AIR 2009 Madhya Pradesh 128 , Dr. Pushpa Puri Memorial Charitable Trust, Mussoorie & Anr. vs. 2nd Additional District Judge, Dehradun & Anr.: AIR 2010 Uttarakhand 22, and Philo Peter & Anr. vs. Divyanathan & Ors.: AIR 1989 Madras 111 . 4. According to the learned counsel, the view adopted by the Court below relying upon the opinion of a Coordinate Bench of this Court in the case of Bhagwandas & Ors. vs. Bhagwandas & Anr.: AIR 2000 Rajasthan 67 , is misreading of the judgment, and therefore, the matter needs interference by this Court in exercise of writ jurisdiction. Heard and considered. 5. The controversy raised in the instant writ application may not detain this Court for long for what has been observed by a Coordinate Bench of this Court in the case of Bhagwandas & Ors. Heard and considered. 5. The controversy raised in the instant writ application may not detain this Court for long for what has been observed by a Coordinate Bench of this Court in the case of Bhagwandas & Ors. (supra), wherein opinion of another Coordinate Bench in the case of Vasudeo (supra), was referred to and distinguished, as would be evident from Para 14 to 18, which reads thus: "14. In the case of Vasudeo vs. Lal Singh (supra), the counsel for the appellant made a statement at Bar that the practice in this Court is to collect fee on probate after order for grant of probate has been made and the said statement was not controverted by the counsel on the other side. It was observed that the payment of entire Court-fee on probate at the stage of making an application for probate places a heavy financial burden on the applicant. 15. In para 8 of the judgment, this Court further indicated thus - It may be stated here that as soon as a caveat is entered In a petition for grant of probate it is leviable with Court-fee equivalent to half of what is payable on a suit. Thus it is evident that Vasudeo vs. Lal Singh case (AIR 1992 Rajasthan 133) (supra) was not a contentious case. 16. The learned counsel below in the impugned order has placed reliance on Vasudeo vs. Lal Singh (supra), whereas the ratio of Vasudeo vs. Lal Singh (supra) is not applicable to the facts of the Instant case as the instant case is contentious one. 17. In Smt. Shanti Bai vs. Kishen Gopal (1970 RLW 183) (supra) it was directed by this Court (Hon'ble Jagat Narain. J. as he then was) that the Court-fee in a contentious case for the grant of probate or letters of administration is, therefore, payable under the proviso to Article 11(j) of Schedule II. 18. As already stated the application submitted by the plaintiff for grant of letter of administration before the Court below was ordered to be registered as regular suit. Admittedly it is contentious case for the grant of letter of administration, therefore, the Court-fee is payable under the proviso to Article 11(j) of Schedule II of the Act of 1961. 18. As already stated the application submitted by the plaintiff for grant of letter of administration before the Court below was ordered to be registered as regular suit. Admittedly it is contentious case for the grant of letter of administration, therefore, the Court-fee is payable under the proviso to Article 11(j) of Schedule II of the Act of 1961. The learned counsel below has not properly considered the provisions contained in the Act of 1961 and committed jurisdictional error on placing reliance on Vasudeo vs. Lal Singh (AIR 1992 Rajasthan 133) (supra), the ratio of which is not applicable to a contentious case. If the impugned order is allowed to stand it would occasion failure of Justice. 19. Consequently the revision petition succeeds and is hereby allowed. The impugned order of the learned District Judge, Jaipur City dated July 8, 1998 stands set aside and the plaintiff is directed to pay Court-fee in accordance with the proviso to Article 11(j) of Schedule II of the Act of 1961. Costs easy." 6. From a glance of provisions of Article 11(j) under Schedule II, it is evident on the face of record that where a caveat is entered and the application is registered as a suit, one-half the scale of fee prescribed in Article 11(i) of Schedule I on the market value of the estate less the fee already paid on the application shall be levied. There is no misreading of the opinion in the case of Vasudeo (supra) by the Court below, while the matter was considered applying the opinion in the case of Bhagwandas & Ors. (supra), for the distinction is evident to the effect that where there is no caveat and the application is not registered as a suit; the opinion and interpretation as made in the case of Vasudeo (supra), shall apply. And in a situation where caveat is entered and the application is registered as suit; the opinion in the case of Bhagwandas & Ors. (supra), shall be applicable. 7. Thus, the Court below committed no illegality much less material illegality while applying the opinion in the case of Bhagwandas & Ors. (supra), for a caveat was entered and the application was registered as suit. Opinions of other High Courts referred to and relied upon were entirely different factual matrix and statutory provisions, hence, have no application to the case at hand. 8. (supra), for a caveat was entered and the application was registered as suit. Opinions of other High Courts referred to and relied upon were entirely different factual matrix and statutory provisions, hence, have no application to the case at hand. 8. For the reasons aforesaid and in view of the reasonings recorded by the Court below while declining the application of the petitioner; there appears to be no illegality and/or material illegality so as to warrant any interference by this Court in exercise of writ jurisdiction under Article 227 of the Constitution of India. In the result, writ application fails and is hereby dismissed.